Opinion 12-144

September 13, 2012

Digest:         A judge may not comment on a judicial candidate rating system created by a political organization’s district leader.

Rules:          22 NYCRR 100.2(A); 100.5(A)(1); 100.5(A)(1)(c); 100.5(A)(2); Opinion 00-64 (Vol. XIX); In re Raab, 100 NY2d 305 (2003).

Opinion:

         A judge who is currently a candidate for elective judicial office asks if he/she may accede to a request from a political organization’s district leader, and comment on a judicial candidate rating system the district leader created. The system involves awarding a certain number of points for specified personal characteristics (such as gender, race, and location of residence) and certain aspects of a candidate’s qualifications (such as experience on the bench, teaching, and pro bono work).

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A sitting judge may not directly or indirectly engage in political activity, except as expressly permitted by the Rules Governing Judicial Conduct (see 22 NYCRR 100.5[A][1]). When a judge is a candidate for elective judicial office within his/her window period, the judge may engage in a limited range of political activities in furtherance of the judge’s own candidacy (see generally 22 NYCRR 100.5[A][1][c]; 100.5[A][2]).

         The Committee has advised that “a judge may not sit in on a political party’s interviews of judicial or non-judicial candidates for elective office even if requested to do so by the party and the judge is himself or herself a candidate for judicial office” (see Opinion 00-64 [Vol. XIX]). Of particular note here, the Committee emphasized that a judge, whether he/she is or is not a candidate, should not “involve himself or herself in the internal workings of a political party, especially where the issue is the party’s endorsement of candidates for elective office” (see Opinion 00-64 [Vol. XIX]). The Court of Appeals has upheld a sanction of censure for a judge who, among other misconduct, questioned other candidates during his party’s screening process; the Court noted that the judge “acted as a party volunteer” in a manner that “went beyond what was necessary or integral to his own judicial races” (see In re Raab, 100 NY2d 305 [2003]).

         In the Committee’s view, a judge who serves as an unpaid consultant to one political party, at the request of a political party leader, in advising the party about how it should evaluate judicial candidates, inescapably creates the impression that he/she is participating in that political party’s evaluation process. It is thus impermissible, regardless of whether the judge is currently a judicial candidate (see Opinion 00-64 [Vol. XIX]; In re Raab, 100 NY2d 305 [2003]). Finally, assisting the party in the proposed manner could cause the judge to appear like a trusted ‘insider’ and ‘advisor’ to the political party, which is also impermissible (see generally 22 NYCRR 100.5[A][1]).